R (Purdy) v DPP [2009] EWCA Civ 92

The absence of a crime-specific policy relating to assisted suicide (identifying the facts and circumstances where it will not be in the public interest to prosecute) does not make the operation and effect of section 2(1) of the Suicide Act 1961 Act unlawful nor mean that it is not in accordance with law for the purposes of Article 8(2). [Overturned on appeal.]

Summary

The Director of Public Prosecutions did not act unlawfully in failing to publish detailed guidance as to the circumstances in which individuals would or would not be prosecuted for assisting another person to commit suicide.

The Court of Appeal so held in dismissing an appeal by Debbie Purdy against the dismissal by the Queen’s Bench Divisional Court (Scott Baker LJ, Aikens J) on 29 October 2008 [2008] EWHC 2565 of her application for judicial review by way of a declaration that her rights under art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms had been infringed by the failure of the Director of Public Prosecutions to publish detailed guidance as to the circumstances in which individuals would or would not be prosecuted under s 2(1) of the Suicide Act 1961 for assisting another person to commit suicide.

LORD JUDGE CJ, giving the judgment of the court, said that the claimant, who suffered a debilitating and degenerative illness, had declared her wish to travel abroad to take her own life when her existence became utterly unbearable. Her claim was based on her wish to know whether or not her husband would be prosecuted if he aided and abetted her suicide. The first issue was whether art 8(1) of the Convention was engaged. In a similar case, R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, the House of Lords found that Mrs Pretty’s art 8(1) rights were not engaged by the DPP’s refusal to undertake that he would not consent to her husband’s prosecution if he assisted her in committing suicide. The European Court of Human Rights found that they were: Pretty v United Kingdom (2002) 35 EHRR 1. The decisions were clearly inconsistent. The claimant had submitted that departure from the general rule that the court was bound to follow the House of Lords decision was justified because the same individual, the same facts, issues and arguments were involved both in the House of Lords and in Strasbourg. However, the House of Lords in Kay v Lambeth London Borough Council [2006] 2 AC 465 gave the Court of Appeal very limited freedom, only in the most exceptional circumstances, to override what would otherwise be the binding precedent of the decision of the House. The court was not seeking to be released from those strictures. The structure of judicial precedent, designed over the years, had served the court well. The decisions of the Strasbourg court did not bind the court. The decisions of the House of Lords did. By-passing or finding an alternative route around the decisions of the House of Lords, on the basis of the jurisprudence of the Strasbourg court would, in the ultimate analysis, be productive of considerable uncertainty. Therefore if the strictures were too tight, it was their Lordships who, if they thought it appropriate, must release the knot. As it was, and in any event, the court could not bring the present case within the required degree of exceptionality. The claimant had also argued that the principle of autonomy established in Strasbourg in Pretty had been accepted as correct in several subsequent House of Lords cases: R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, Ghaidan v Godin Mendoza [2004] 2 AC 557 and R (Countryside Alliance) v Attorney General [2008] 1 AC 719.. However, there was nothing in those three decisions sufficient to indicate that lower courts should no longer consider themselves bound by the judgment of the House of Lords in Pretty’s case. It followed that the court must find that the claimant’s art 8(1) rights were not engaged. In any event, the absence of a crime-specific policy relating to assisted suicide did not make the operation and effect of s 2(1) of the 1961 Act unlawful nor mean that it was not in accordance with the law for the purposes of art 8(2). The DPP could not dispense with or suspend the operation of s 2(1), and he could not promulgate a case-specific policy in the kind of certain terms sought which would, in effect, recognise exceptional defences to the offence which Parliament had not chosen to enact.

Other

Appearances: Lord Pannick QC and Paul Bowen (Bindmans LLP) for the claimant; Dinah Rose QC and Jeremy Johnson (Treasury Solicitor) for the defendant; Charles Foster (Penningtons) for the intervener, the Society for the Protection of Unborn Children.